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Race, Nationality, and Reality:
INS Administration of Racial Provisions in U.S. Immigration and Nationality Law Since 1898, Part 2

By Marian L. Smith

Whether to apply a "color test" or to determine whiteness by reference to an ethnological table of the families and races of mankind was the basic question put to naturalization officials for years thereafter. Court officers, attorneys, and private citizens regularly requested a ruling from the Department of Commerce and Labor on the question. But, as Naturalization Division Chief Richard K. Campbell admitted in 1907, such a ruling would not "be considered authoritative if one were adopted," because the ultimate power to decide the issue lay with the courts.12

At the same time, Campbell
understood the 1906 naturalization
act to have given his agency
a clear mandate to guide
naturalization courts toward
uniformity. When the various U.S. attorneys who represented
the government in naturalization
cases asked Campbell how
they should proceed without
a definitive court ruling,
he began to offer the opinion
of his office regarding racial
eligibility to naturalization
and to suggest a course of
action for the attorneys.
While Campbell's writings
indicate that he personally
considered "off-color
races not only unfit but
as well undesirable additions
to the body politic,"
his strategy consisted of
efforts to force courts into
making decisions one way
or the other. He began in
August 1908 by advising Andrew
Balliet, assistant U.S. attorney
in Seattle, to direct clerks
of court to refuse to accept
declarations of intention
or file petitions for naturalization
on behalf of "Hindoos,"
or East Indians. In doing
so, Campbell hoped to push
the applicants toward a higher
court that might issue a
precedent decision.13

Beyond his effort to coordinate
the activities of U.S. attorneys,
and through them influence
clerks of courts, Campbell
could offer little in the
way of practical instruction.
He received numerous queries
from clerks like J. W. Porter,
clerk of the circuit court,
Champaign County, Illinois,
who asked if the division
could supply a "list
of countries from which,
and from which only, natives
may apply for naturalization?"14
Campbell replied that there
was no list, nor would such
be of any "practical
value." Rather, a list
of countries, representing
nationalities, "would
be very apt to mislead you"
since §2169 does "not
apply to countries or to
natives of any country, solely,
as white persons may come
from any country to the United
States and be eligible to
citizenship."15
Like the courts, the Naturalization
Division could offer no clear
guidance on Clerk Porter's
practical question.

Copies of Richard Campbell's
earlier letter to U.S. Attorney
Balliet, which implied that
clerks of court were not
to accept naturalization
applications by any person
racially ineligible to citizenship,
eventually forced Campbell
and the division into retreat.
In the next year, 1909, New
York immigrant advocate Justin
S. Kirrah launched a campaign
on behalf of Syrians, Turks,
East Indians, and others
deemed non-white by Campbell.
In a complaint to the secretary
of commerce and labor, Kirrah
accused the division chief
of "personal malice"
toward certain ethnic groups
and of interfering with work
of the courts and "abuse
of his office and usurpation
of functions appertaining
to Federal officials other
than himself."16
At the same time, the Board
of Delegates on Civil Rights
of the Union of American
Hebrew Congregations also
complained to the secretary
about the department's denial
of naturalization to Turks,
Syrians, Armenians, Palestinians,
and Jews, pointing out that
if the ruling were upheld,
"it would, if living,
exclude David and Isaih [sic]
and even Jesus of Nazareth
himself."17

Secretary of Commerce and Labor Charles Nagel soon admonished the chief of naturalization for pretending to decide for the courts whether a person was racially qualified to apply for naturalization, advising the division to "be concerned more with the present reputation than with the original nativity of the applicant." Campbell responded by mailing a new letter of instructions to each chief naturalization examiner (representatives of the division in naturalization hearings). He admitted that racial eligibility was a question of law "and is not a question which this Department or any officer thereof is authorized to decide." On the other hand, it remained the examiners' duty to advise the court of each and every petitioner's race.18 Though the 1906 Naturalization Act put the Naturalization Division in charge of "all matters" related to naturalization, this 1909 episode demonstrated the limited power held by the administrative agency at that time. The division and the courts actually shared, or enjoyed divided, authority over various aspects of the naturalization process. And as Campbell later remarked, "[d]ual authority and responsibility never have been and never will be productive of anything but confusion."19

Unless the courts issued enough decisions to determine the eligibility of every possible "race" that might apply for citizenship, or until the Supreme Court might issue broad guidance on the definition of white persons, federal officials continued to live amid uncertainty. Those at the Department of Interior's General Land Office were frequently embarrassed by the fact that they accepted homestead applications from aliens racially ineligible to citizenship, then had difficulty issuing final patents when the homesteader was unable to naturalize. Often, judges frustrated with contradictory federal rules would admit racially ineligible homesteaders to citizenship as a protest to conflicting federal practices.20

Other absurd cases continued
to arise, like the case of
Carmen Garcia, a Mexican
teacher at the Government
Indian School in Riverside,
California. While employed
by one arm of the U.S. government
to teach Americanization
on the reservation, Garcia
was found racially ineligible
to naturalize by another
arm of that government because
her ancestry was three-quarters
Papago Indian.21
In correspondence with U.S. attorneys, Campbell sought
cases in which an objection
to the naturalization of
a racially ineligible applicant
might make its way to the
Supreme Court. Attorneys,
however, were understandably
reluctant to defend such
objections without evidence,
and there was no settled
opinion on what constituted
evidence of race. The courts
increasingly turned to science
for an answer to the question,
and the state of early twentieth-century
American ethnology was peculiarly
qualified to confuse the
issue further.

When trying to advise a
local judge about the racial
eligibility of "Hindoos,"
or East Asians, the assistant U.S. attorney in Seattle consulted
a scientific library in an
effort to learn whether or
not East Indians were white.
He learned that ethnologists
considered East Asians to
be "from Aryan stock,"
specifically "Caucasic"
or "Caucasian."
He then advised the court
to accept a Hindu's application,
since it seemed "from
the best source of information
obtainable by this office
on that subject that they
are included in the term
'Caucasian.' If that is true
they have a right to make
their declaration."
Expressing some doubt that
his action was appropriate,
the attorney wrote the Division
of Naturalization for Campbell's
opinion.22

Campbell frequently voiced
his disregard for "ethnologists,
of whom the authors of the
statutes had as little knowledge
as they did of this rather
speculative science."
Campbell said the division
based its determination that
Hindus were not white persons
on previous court decisions
holding that Indians, Chinese,
Japanese, Hawaiians before
annexation, and natives of
British Burma were all nonwhite
Further, "prior to the
Civil War negroes, of whatever
shade, were ineligible."
Arguments that Hindus were
Caucasians were irrelevant,
for it was "immaterial
whether the writer is ethnically
an Aryan or a Mongolian.
His claim in that respect
is probably correct. The
fact is that he is not a
white person." To determine
who was and was not white,
Campbell was happy to leave
the issue to the courts,
whose decisions would be
based not on science, but
on "common understanding":

The law refers to persons, and confines the right to become naturalized to those who are white. It does not seem to me that the introduction of expert testimony would result otherwise than it does where testimony of this character is used to establish any doubtful point, the question of sanity, for example. Without being able to define a white person, the average man in the street understands distinctly what it means, and would find no difficulty in assigning to the yellow race a Turk, or Syrian, with as much ease as he would bestow that designation on a Chinaman, or Korean.

The result desired is one that can be reached definitely, not by any general rule, but by a slow process of elimination.

Campbell's approach now agreed with that taken by the lower courts, which considered each race or ethnic group on a case-by-case basis. The accumulation of court decisions over time, however, did not necessarily bring clarity. Campbell observed in 1916 that the language of §2169 "has been fruitful of much honest diversity of construction by the public and by the courts . . . in the absence of legislative attempt to remove its obscurity."23

The Supreme Court first attempted to construe the meaning of "white persons" in 1922, in the case of Ozawa v. The United States.24 In its decision, the court denied naturalization to Takao Ozawa, a Japanese born in Japan, on the grounds that he was not a white person. The written decision referred to white persons as those "popularly known as the Caucasian race." To many, this seemed a nod to the ethnological argument rejected by Campbell, and consequently "gave rise to a difficult situation in regard to those races who were not white of skin, but who were classified as Caucasian by ethnologists because of a remote common ancestry with admittedly white persons."25

The Supreme Court soon clarified its reasoning, and rejected scientific ethnological classification as a determiner of race, in its 1923 United States v. Thind decision. Bhagat Singh Thind was "a high caste Hindu of full Indian blood" born in Punjab, whom the court denied eligibility to naturalization. The written opinion explained that the words "white person" were to be understood as those found "in common speech, to be interpreted in accordance with the understanding of the common man, synonymous with the word 'Caucasian' only as that word is popularly understood."26 The Thind decision became the touchstone of judicial policy toward racial eligibility for another two decades.

The Supreme Court's reasoning
in the Thind case
had significance beyond determining
that Hindus were racially
ineligible to naturalize.
While trying to divine the
original intent of Congress
in using the term "white
persons," the court
referred to Congress's more
recent creation of the "Asiatic
barred zone"27
defined within the Immigration
Act of 1917. In the immigration
law, Congress designated
a geographic area from which
immigration was prohibited,
and the court concluded "it
is not likely that Congress
would be willing to accept
as citizens a class of persons
whom it rejects as immigrants."28
The court did not argue that
Congress in 1917 was attempting
to define the term "white
persons" when drawing
the zone, only that in doing
so Congress again demonstrated
that "common understanding"
of nonwhite, non-African
regions of the world. Furthermore,
the Thind decision
suggested that additional
races from outside the barred
zone could still be found
ineligible to naturalization.

Yet the reference to immigration law and its barred zone seemed to offer an end to the confusion of naturalization officials, judges, and naturalization attorneys across the nation. The Immigration Act of 1917 described the barred zone with latitudinal and longitudinal precision. If one took Thind literally, one need only consult a map of the zone to determine the eligibility of any naturalization applicant.29 Commissioner of Naturalization Raymond F. Crist, who replaced Richard Campbell in 1923, called the Thind decision "a source of gratification to administrative officers" who longed for a settlement of the legal question by the Supreme Court, regardless of whether the court decision upheld or overturned previous administrative decisions. Supreme Court attention to disputed provisions of the nationality law were especially important, he noted, as the Constitution mandated uniformity in application of naturalization laws. Crist seemed to think the Thind decision would "clarify the atmosphere of doubt hitherto existing in the interpretation of the statutes."30

A Detroit judge soon demonstrated
that questions of racial
eligibility would continue
to be decided on "common
understanding," as recommended
in Thind, rather than
the Asiatic barred zone.
Following the Thind
decision, a number of suits
commenced to cancel citizenship
earlier granted to other
Hindus. Facing proceedings
to cancel his 1921 naturalization,
John Mohammed Ali told the U.S. District Court in Detroit
in 1925 that though born
in India, he was not East
Indian or Hindu. Rather,
he was properly Arabian,
for his ancestors originated
in Arabia. The court replied
that Ali's ancient ancestry
was not at issue. Ali had
dark skin and fit all other
criteria that had disqualified
Thind from naturalization.
The court, however, did not
definitely hold that persons
of the Arabian race were
ineligible. The decision
in Ali's case, by canceling
his citizenship but not deciding
the eligibility of Arabs,
only served to renew controversy
over the eligibility of those
peoples who bordered on the
barred zone.31

Afghanistan was only partially included within the barred zone, but in 1928 a California judge also dismissed an Afghan's petition for naturalization on the basis of the Thind decision. In re Feroz Din, the court denied naturalization to an Afghan because he was neither white nor of African nativity or descent. It was not necessary to consult scientific evidence, the judge noted in his brief decision, for "[w]hat ethnologists, anthropologists, and other so-called scientists may speculate and conjecture in respect to races and origins may interest the curious and convince the credulous, but is of no moment in arriving at the intent of Congress in the statute aforesaid."32

Any remaining hope that
immigration law's barred
zone would provide a rational
system for determining racial
eligibility was dashed by
the Immigration Act of 1924.33
In a marvelous example of
legal cross-referencing,
the 1924 act denied eligibility
to immigrate to those denied
eligibility to naturalize
under U.S. nationality law— the
very nationality law recently
interpreted by reference
to immigration law! Put simply,
any person ineligible to
naturalize was now ineligible
to immigrate. By essentially
incorporating §2169
into immigration law, Congress
offered both the Immigration
Service and the Department
of State's Foreign Service
the opportunity to wrestle
with the question of who
was, and was not, racially
eligible to naturalize.

A good example of the problem
appeared in early 1930, in
India, on the basis of a
rumor that a United States
court had declared Parsees
eligible to citizenship.34
Immediately, U.S. Consul at
Bombay Wilbur Keblinger was
deluged with Parsee immigrant
visa applications. "Inasmuch
as practically all of the
Parsees in the world live
in the consular district,"
he wrote the secretary of
state, "it would be
appreciated if the Department
could inform this Consulate
whether or not such a decision
has been handed down."35
Though guidance provided
to the State Department by
the assistant commissioner
of naturalization assured U.S. consuls that Parsees remained
ineligible to citizenship
because they were native
to the Asiatic barred zone,
a U.S. consul in London continued
to be troubled by the case
of a Parsee actor who wished
to go to Hollywood. The applicant
claimed to be Parsee, but
not native to the barred
zone.36

The level of confusion overseas
matched that at home, where
racial exclusions to citizenship
did not always appear uniform.
"Does race or color
mean nothing?" asked
a resident of Portland, Oregon,
who read in his local paper
that two Japanese and one
Chinese were naturalized
by a U.S. court. His newspaper
did not explain the three
were U.S.-born women who
had previously lost their U.S. citizenship by marriage
to aliens. Two of the three
were Asian Americans. One
of the so-called Japanese
women was actually of Scandinavian
descent and had acquired
Japanese nationality and
"race" by marriage.
All three women, because
they were U.S.-born, were
allowed to naturalize despite
their "race" under
special provisions of a law
amended by Congress in 1931.
Congress again waived racial
requirements for citizenship
in 1935 when allowing for
the naturalization of racially
ineligible World War I veterans.37

The confusion of race with nationality became more obvious and problematic for immigration and naturalization officials after a 1933 - 1934 reorganization of the executive branch recombined the Immigration Bureau and the Naturalization Bureau into one agency, the Immigration and Naturalization Service. Separate since 1913, the two bureaucracies became one devoted to enforcing both immigration and nationality law. That the two used different racial classification systems for procedural and statistical purposes initiated some reconsideration and revision of internal, administrative guidance on the question. As recently as 1930, the Department of Labor concluded that no change could be made to the designation of races and peoples on certain immigration and naturalization forms because the data was required "by law."38 But by the mid-1930s the INS began, at times, to use its administrative discretion to alter its classification of race.

Change began with amendment of the traditional List of Races or Peoples devised by the Immigration Service on Ellis Island in 1898. Internal instructions issued September 11, 1936, announced two changes to the list and four additions. The two revisions illustrated a continuing mixture of race (as color) and nationality on the list. "African (black)" changed to "Negro," no doubt simplifying the classification of blacks from the Caribbean or Central and South America. Previously, blacks from Cuba or the West Indies, for example, were designated as "African" though typically not native to Africa. Another change combined the statistical codes for "Italian (north)" and "Italian (south)."39 In 1898, the northern and southern Italians were classified separately because the list depended heavily on language to identify differing races or peoples. By 1936, international politics held greater sway.

The same change from an ethnic to a political definition of "peoples" can be seen in the four 1936 additions to the list: Albanian, Estonian, Latvian, and Filipino. The Immigration Service had classified Latvians as Lithuanians for nearly four decades. But in 1935 the Latvian consul general began a campaign to convince the commissioner of immigration and naturalization to separate the two groups. His argument was simple: "'Lithuanian' is, of course, not a race, nor are Latvians Lithuanians, nor Lithuanians Latvians."

The North American Manx Association made a similar plea in June 1937, pointing out that the "native race or people of the Isle of Man" were as distinct from the English as were the Irish, Scottish, or Welsh, and deserved similar recognition on the List of Races or Peoples. INS Circular No. 152, of August 12, 1937, announced the addition of "Manx" to the list. And protests from the Mexican government "that Mexicans did not belong to the 'colored' races" caused INS to issue new guidance emphasizing that Mexicans were considered white for immigration and naturalization purposes. A similar response to protests from Brazil in 1942 had INS revising all references to "Spanish American" to read "Latin American."40

By far the most pressing, and embarrassing, item on the List of Races or Peoples in the late 1930s was the term "Hebrew." The American Jewish Committee protested the classification of Hebrew as a race as early as 1930, warning that such "inquisition" into religion by the government was "improper and susceptible of unfortunate abuse." At that time, the solicitor for the Department of Labor wrote a long memorandum on the legal requirement for including race— and Hebrew as a race— on both immigration and naturalization forms. The department found the American Jewish Committee's complaint groundless and rejected their request.41 In the following years, as Nazi persecution of Jews in Europe increased, dissatisfaction with the presence of Hebrew on the list widened and deepened.

Somehow, late in the 1930s, the service was able to amend the procedure for recording race on naturalization (as opposed to immigration) records. Vague references to this change imply that traditional difficulties in "obtaining and recording proper information as to race" caused a revision of forms wherein the applicant no longer stated his race, but chose a racial designation from a list of those eligible to citizenship. This revision occurred prior to passage of the Nationality Act of 1940, evidenced by a May 7, 1940, edition of form A-2214, Application for a Certificate of Arrival and Preliminary Form for Petition for Naturalization. A blank calling for race does not appear on the form until page three, and refers the applicant to instructions listing the choices of white, African or African descent, or Filipino. "State to which one of these classifications you belong."42

All INS naturalization forms
were revised after passage
of the Nationality Act of
1940. Based on recommendations
offered by a presidential
committee studying naturalization
problems since 1933, the
act recodified all (and reconciled
much) previous U.S. nationality
law. Among proposals associated
with the committee were some
recommending elimination
of any racial requirement
for naturalization. Unfortunately,
§303 of the new law
extended racial eligibility
to only one new group: descendents
of races indigenous to the
Western Hemisphere. Section
303 not only required INS
to revise naturalization
forms again, it raised a
question of reinterpretation
of the old §2169. Furthermore,
it begged the question: Who
are races "indigenous
to the Western Hemisphere?"

Recodification of nationality law forced the INS to examine all legal language and reevaluate its administration. It also became an opportunity to reinterpret §2169, which was not repealed but was replaced for INS purposes by §303. Though the 1940 law covered only naturalization, the legislative links between racial eligibility and immigration had been established earlier. Thus any change to racial classification in administration of naturalization could affect racial classification in the immigration arena.

It was with this opportunity in mind that Commissioner of Immigration and Naturalization Earl G. Harrison began his effort to remove Hebrew from the immigration List of Races or Peoples. Two months after taking office, Harrison asked Henry Bernard Hazard, an immigration and nationality law expert and director of the service's Research and Education Division, to review the practice of racial classification on INS forms and answer the question of whether "'Hebrew' was a race." After more than thirty years of working to standardize immigration and naturalization, Hazard may have shared Harrison's obvious desire to excise the word "Hebrew" from official forms. In any event, Hazard quickly submitted a long analysis of the question, concluding that Jews or Hebrews could not properly be considered a race, "at least not in the sense in which that term is used in the immigration law."43

More important, Hazard concluded that both "race" and "peoples" were subject to administrative determination under naturalization and immigration law. In his review of immigration's list, Hazard noted that the law required a record of each arriving immigrant's race but "has nothing to say about 'the people' to whom the alien may belong. The enlargement of the classification . . . to include 'peoples' appears to have been made arbitrarily, possibly because of the difficulty in determining just what the term 'race' might imply." Similarly, concerning the Nationality Act of 1940, Hazard concluded that neither the law nor regulations defined the term "race." As a result, whatever system the INS used to classify or supply race on naturalization forms was "a matter resting in administrative discretion." One year later, the term "Hebrew" no longer appeared on immigration forms and papers.44

Another area where the INS increased its use of administrative discretion related to racial eligibility to naturalization. As has been shown, the courts traditionally admitted or denied racially ineligible aliens during court proceedings, either according to or despite INS objections. But developments in administrative law generally began to provide INS officers with opportunities to make decisions outside the courtroom. The cases of Majid Ramsay Sharif (Shariph) and Noshad Khan are illustrative.45

Sharif, an Arab, applied
for an immigration visa in
1941 but was denied as an
alien racially ineligible
to citizenship. Khan, an
Afghan resident of the United
States since 1926, faced
deportation charges in 1941
for illegal entry but applied
for discretionary relief
as his deportation would
be a hardship on his U.S. citizen
wife and children. Whether
the INS could afford relief
to Khan and adjust his immigration
status depended on whether
an Afghan was racially eligible
to naturalize. In both cases,
because they were not petitions
for naturalization, the questions
went not to the courts but
to the Board of Immigration
Appeals (BIA).46
Administrative law could
now determine the question
of racial eligibility.

In Sharif's case involving
the eligibility of an Arab,
the board, like the courts,
relied on the Thind
decision. Unlike the courts,
the BIA was persuaded by
a brief for the U.S. government
in the Thind case
that argued that "whiteness,"
for lack of a better term,
is associated with Western
civilization, and Western
civilization includes "so
much of the Near East as
contributed to, and was assimiliable
with, the development of
Western Civilization of Greece
and Rome." Having recalled
the cultural link between
the ancient and modern western
worlds, the board concluded
"that it was not intended,
either in 1790 at the time
of the first enactment of
the governing statute or
certainly in 1940 at the
time of its last enactment,
that Arabians be excluded
from the group of 'white
persons'."47
Unless one is prepared to
believe immigration officials
were naturally more benign
that Supreme Court justices,
the Sharif case demonstrates
a changed "common understanding"
in 1941 from that which persuaded
the court in 1923. Upon revisiting
the Thind decision,
the BIA came to an opposite
conclusion.

The board exhibited equal flexibility in the case of Noshad Khan, which had to overcome the 1928 In re Feroz Din decision that Afghans were not white persons. To do so, the BIA questioned whether Americans had any "defined popular or common understanding" of Afghans given there were only an estimated two hundred Afghans then living in the United States. Without any popular guide, the board turned to ethnologists who provided evidence that "an Afghan is the exact prototype of the Persian." Since Persians had always been considered racially eligible to naturalize, Afghans would be as well. Because it departed so far from case law, the BIA forwarded its Khan decision for approval by the attorney general, who in turn requested the opinion of the INS. After the INS legal office supported the Khan decision, the attorney general approved it on May 26, 1945.48 Afghans had thus been found eligible to naturalize and to immigrate despite the opinion of, and without the participation of, the courts.

INS changes to the classification
of race and administration
of racial provisions in immigration
and nationality law reflected
changes in American thinking
or "common understanding."
During the Seventy-eighth
Congress, in 1942 and 1943,
eleven different bills were
introduced proposing elimination
of racial barriers to naturalization.
While most of the bills only
aimed to remove the bars
to Filipino, Korean, or East
Indian naturalization, they
indicated a willingness or
desire on the part of the
American people to liberalize
a restrictive policy maintained
since 1924.49
It should not be forgotten
that changes to naturalization
at home during World War
II coincided with administrative
naturalization of soldiers
serving in the U.S. Armed Forces
overseas. Since the First
World War, Congress maintained
legal provisions facilitating
the naturalization of U.S. soldiers despite racial ineligibility.
During World War II, the
practical and propaganda
value of naturalization ceremonies
held in Europe, North Africa,
and the Pacific, in which
representatives of all corners
of the earth came together
to pledge themselves to American
ideals, fostered the image
of the United States as the
defender of democracy worldwide.
But they also stood in uncomfortable
contrast to continuing racial
exclusions to citizenship
on the home front.

Unlike American attitudes toward race, INS statistical methods in 1940 remained much the same as they had been at the turn of the century. The ability, willingness, or practicality of changing INS racial classification and coding depended on the service's perception of its legal requirements to record and report racial statistics. That the INS could alter or amend its statistical system became clear in the late 1930s, when additions and changes were made to the List of Races or Peoples. Further change became possible after the realization, stated in Henry B. Hazard's 1942 memorandum to Commissioner Harrison, that "race" and "people" were not defined by law but by administrative practice.